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PETITIONER: JUGAL KISHORE

       Vs.

RESPONDENT: DHANNO DEVI   (DEAD) BY L.RS.

DATE OF JUDGMENT13/08/1973

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. ALAGIRISWAMI, A.

CITATION:  1973 AIR 2508            1974 SCR  (1) 360  1973 SCC  (2) 567

ACT: Civil  Procedure Code., Order 33, Rule 2 and 3, Order 7  and 8--Sec.   149   Civil  Procedure   Code-Pauper   application subsequently  with  drawn-Enlargment of time  by  Court  for payment of court fee-Subsequent payment of court fee relates back to the presentation of pauper application and the  suit is  deemed  to  be presented from the  date  of  the  pauper application.

HEADNOTE: The  respondent, on January 1948, presented  on  application under Order 33, Rule 2 and 3 of the C.P.C. for permission to sue  as a pauper praying for the relief of possession  of  a house  to which she had an undisputed title.  On  26-2-1949, the  plaintiffs  pleader moved the Court  for  treating  the pauper  application as a plaint and for giving three  months time  for  the  payment of court fee.   On  default  by  the respondent,  the court dismissed the suit but  restored  the same  after  the plaintiff on November 12,  1949,  paid  the court  fee  and the costs of the defendant.   The  appellant contended  that  the  application to  sue  as  pauper  being dismissed  on January 18, 1949, there was no  proceeding  p- ending  before  the  court thereafter  and,  therefore,  the restoration  of the proceeding and the payment of Court  fee were  without  any authority_of law and hence the  suit  was barred  by limitation.  Assuming, it was contended that  the Court  had  authority to treat the application to sue  as  a pauper a,; a plaint, the application had been converted into a  plaint  on November 12, 1949 and on that date,  the  suit would  be barred by time.  After losing in trial  court  and the  High  Court, the appellant agitated the matter  in  the Supreme Court. Dismissing the appeal, HELD:(1) Since the suit under section 26 of the  C.P.C. may be instituted not merely by presentation of a plaint but also  in such manner as may be prescribed, the  presentation of  the  application  by  pauper  u/s  33  would  amount  to institution of the suit. [3-63E-F] Vijay  Protap Singh v. Dukh Maran Natli Singlz and  Another, [1962] 2 Suppl.. S.C.R. 675, relied upon. (2)A suit by a pauper or a person claiming to be a  pauper must   be  regarded  as  instituted  on  the  dale  of   the

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presentation  of the, application for permission to  sue  in forma pauperis. [364E-F] (3) Where the application is granted under Order33 Rule  7 and 8, the     application  is regarded as the  plaint  from the date ofits  presentation,  where  before  the  final disposal of the application to sue asa    pauper,     the plaintiff      offers  to  pay the court fee.  treating  the application asplaint, or the Court agreeing to treat it  a, a plaint enlarges the time for the payment of the court fee, the application must’ be regarded as a plaint instituted  on the date when the application was presented. [364F-H], Stuart  Skinner  v. William Orde, 2  Allahabad,  241  (P.C.) Devendar  KumarBharti  V. Mahanta Raghttrai  Bharti,  A.I.R. 1955 Allahabad, 154, (F.D.), cited with approval. (4)In  the  present case, the actual order passed  by  the Court on July 18, 1949 was not an order rejecting the plaint but rejecting the application to sue is a pauper.  The  said order had become otiose since the respondent did not want to Proceed  as a nauper.  There was, in fact, no  rejection  of the plaint.  U/s. 149 C.P.C.. the Court can enlarge the time for  the  pavment  of the court fee and the  effect  of  the payment  is as if. the court fee is paid on the date of  the presentation  of  the plaint.  The suit must,  therefore  be regarded  as  filed  on  January  2.  1949  and  was  within limitation. [366D-F] 361

JUDGMENT: CIVIL  APPEAL  No. 1326 of 1967 : Appeal  by  special  leave under  article  136 of the Constitution of  India  from  the judgment  and decree dated the 31-3-1963: of  the  Allahabad High Court in First Appeal No. 92 of 1955. S.T. Desai, M. Natesan, A.T.M. Sampath and E.C.  Agarwala for the appellant. M.C.  Cliagla, Lalit Kumar Gupta and A.-G. Ratnaparkhi,  for the respondent No. 1 (a). The Judgment of the Court was delivered by PALEKAR,   J.   The   appellant  is  the   son   and   legal representative  of  the  original defendants  to  the  suit, Kedarnath  and Chanda Devi.  The respondents are  the  legal representatives of the deceased plaintiff, Dhanno Devi. On  January  2, 1948 Bhanno Devi  presented  an  application under Order 33, Rules 2 and 3 of the Code of Civil Procedure for permission to sue as a pauper in the Court of the  First Civil  Judge,  Kanpur.  TIC plaint part of  the  application prayed  for the relief of possession of a house situated  in the  city of Kanpur on the allegation that the house was  of the  ownership of one Budhu Lal-her father.  Budhu Lai  died in 1918 and on his death his widow Jumma Devi inherited  the property.  On Jumna Devi’s death on December 26, 1935 Dhanno Devi,  as  the  daughter, was entitled  to  succeed  to  the property.   The  defendants  were  in  possession  and  were falsely refusing to yield up their possession to Dhanno Devi and  hence she was required to file the suit.  A very  large amount had to be paid as court fee which Dhanno Devi was not in  a position to pay and hence she prayed  that  permission may  be given to her to sue as a pauper.  The last date  for filing the suit was December 26, 1947 but as the courts were closed  for  X’  mas  vacation  the  application  had   been presented  to the court on January 2, 1948 i.e. on  the  re- opening  of the court and thus it was claimed the  suit  was within limitation. The defendants disputed the plaintiff DhannoDevi’s

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titlecontending that she was not the daughter of Budhu  Lal. They alsocontend    ed   that   the  suit  was   barred   by limitation. The Trial Court negatived the contentions of the  defendants and decreed the suit.  That decree was confirmed by the High Court  of Allahabad by its Judgment dated March 31, 1965  in First  Appeal No. 292/1955.  The present appeal  by  special leave is directed against the judgment of the High Court. Since both the courts held that Dhanno Devi had title to the house  and the defendants had none, learned counsel for  the appellant did not, rightly, press the contention with regard to  Dhanno Devi’s title to the property in suit.   The  only point pressed before us was with regard to limitation. 362 The  point  of limitation arises in this  way.   As  already stated the suit had been instituted on January 2, 1948 by an application for permission to sue as a pauper under Order 33 C.P.C.  If  that date is regarded as the date on  which  the suit  was properly instituted then there is no dispute  that the plaintiff’s suit is in time.  But what happened was that on  February 26, 1949, before the question of pauperism  was formally decided by the court, the plaintiff’s pleader asked for  three  months  time  to  pay  the  court  fee  on   the application  by treating it as a plaint.  The court  granted this  prayer  and adjourned the case from time  to  time  to enable her to pay the court fee.  The last date so fixed was July  15, 1949.  On that day the plaintiff did  not  appear, nor  did she pay the court fee and consequently on July  18, 1949 the following Order was passed by the court               "Court  fee still unpaid.  The  applicant  did               not  press  his application to  sue  in  forma               pauperis but offered to pay court fee.  He did               not do so till now.                                  ORDER               The   application  to  sue  as  a  pauper   is               dismissed with costs." On  August 13, 1949 the plaintiff filed an  application  for restoration  of the case under Order 9 Rule 9  C.P.C.  After hearing  the defendants the court passed an order  that  the plaintiff  should first pay the court fee and the  costs  of the  defendants  whereupon the application  for  restoration would be considered.  Ace ordingly on November 12, 1949  the plaintiff paid the court fee and the defendant’s costs.   By his  order dated April 15, 1950 the learned Judge held  that the plaintiff had sufficient cause for not paying the  court fee  in time and restored the proceeding to the  file  after setting. aside the order referred to above. When  the  court  fee was paid on the  application  i.e.  on November  12, 1949, the suit would have been barred by  time because,  as  already stated, the last date for  filing  the suit was January 2, 1948.  It is contended on behalf of  the appellant  that on the application to sue as a pauper  being dismissed  on  January  18, 1949, there  was  no  proceeding pending  before  the court thereafter  and,  therefore,  the restoration  of the Proceeding and the payment of court  fee were without authority of law and hence the suit was  barred by  limitation.  Assuming, it was contended, that the  court had authority to treat the application to sue as a pauper as a  plaint, the application had been converted into a  plaint on  November  12, 1949 and on that date the  suit  would  be barred by time. Section  26 of the Civil Procedure Code provides how a  suit is to be instituted in a Civil Court.  Every suit, as stated in that section, &hall be instituted by the presentation  of a  plaint or in such other manner as may be prescribed.   On

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January  2, 1948 the plaintiff had presented an  application for  permission  to sue under Order 33 C.P.C. It was  not  a suit  instituted by the presentation of a plaint.   But  the suit  was  obviously instituted in a  manner  Prescribed  by Order 33.  Rule 1 of Order 33 provides- 363 "Subject  to  the  following  provisions  any  suit  may  be instituted by a pauper" The manner of such institution is provided in rules 2 and  3 which are as follows               "2.   Every application for permission to  sue               as  a  pauper shall  contain  the  particulars               required  in  regard to plaints  in  suits;  a               schedule of any movable or immovable  property               belonging to the applicant, with the estimated               value  thereof, shall be annexed thereto;  and               it shall be signed and verified in the  manner               prescribed for the signing and verification of               pleadings."               3.Notwithstanding  anything  contained  in               these   rules,   the  application   shall   be               presented  to  the Court by the  applicant  in               person,  unless he is exempted from  appearing               in Court, in which case the application may be               presented  by  an  authorised  agent  who  can               answer all material questions relating to  the               application,  and who may be examined  in  the               same  manner as the party represented  by  him               might  have  been  examined  had  such   party               attended in persons In  short, according to rules 1, 2 and 3 a suit by a  pauper is instituted when the application for permission to sue  as a pauper containing the necessary particulars of a plaint is presented to the Court by the applicant in person or by  his authorized  agent.  In the present case it is  not  disputed that this was done on January 2, 1948. There  has  been  a  conflict of  judicial  opinion  on  the question  whether  a  suit  could  be  held  to  have   been instituted when a petition to sue as a pauper was presented. One view is that until permission is granted under rule 7 of Order  33  there is no suit instituted.  The other  view  is that  since  a suit under section 26 may be  instituted  not merely  by  the presentation of a plaint but  also  in  such manner  as  may  be  prescribed  the  presentation  of   the application  by  the pauper under Order 33 would  amount  to institution  of the suit.  This latter view is  accepted  by this  Court in Vijay Pratap Singh v. Dukh Haran  Nath  Singh and  Another.(1).  In that case Vijay Pratap Singh  filed  a petition  for  leave  to  sue  in  forma  pauperis  for  the declaration of his title to Ayodhya Raj.  He claimed that on the  death of the widows of Maharaja Man Singh,  the  estate devolved on his grand father, Ganga Dutt, who died in  1942. The  estate  was ’thus ancestral property in  the  hands  of Ramjivan, the father of the plaintiff, who thus got interest in  the same by reason of his birth.  Ramjivan was made  one of the defendants to the suit.  The plaintiff’s petition  to sue as a pauper was rejected by the Subordinate Judge  under Order 33 rule 5(d) on the ground that the allegations in the application  did  not show a cause of action.  It is  to  be noted  that  the court had not decided the issue  about  his pauperism  because that could be done only under  Rule  7(3) after  trial  of the issue under rule 6. On  such  rejection Ramjivan-the father applied to the court to be transposed as the petitioner but that application was also rejected.  This court held that the rejection of both these applications was

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improper because, in the first case, the (1)[1962] (2) Suppl, S, C. R. 675. 364 court  had to see under rule 5 (d) whether the,  allegations made in the petition showed a cause of action and the  court had  no power to enter upon a trial of the issues  affecting the  merits  of  the  claim  at  that  stage.   As   regards Ramjivan’s application for transposition under Order 1  Rule 10  it  was held that the application was  wrongly  rejected because  such  an  application.  could  have  been   legally entertained  by the court because the suit had already  been instituted.   It was pointed out that an application to  sue in forma pauperis is but a method prescribed by the Code for institution  of  a suit without payment of  court  fee  and, therefore,   the   suit  commences  from  the   moment   the application  for  permission to sue in  forma  pauperis,  as required  by  Order 33 of the Code, is  presented.   Dealing with the point the court observed at page 685.               "We  are also of the view that the High  Court               was in error in holding that by an application               to sue in forma pauperis, the applicant  prays               for  relief  personal to himself.   An  appli-               cation  to  sue in forma pauperis,  is  but  a               method prescribed by the Code for  institution               of  a suit by a pauper without payment of  fee               prescribed by the Court Fees Act, If the claim               made  by the applicant that he is a pauper  is               not established the application may fail.  But               there   is   nothing  personal  in   such   an               application.   The  suit  commences  from  the               moment an application for permission to sue in               forma pauperis as required by 0.33 of the Code               of Civil procedure is presented, and O. 1,  r.               10, of the Code of Civil Procedure would be as               much applicable in such a suit as in a suit in               which court fee had been duly paid." This Court has, therefore, finally resolved the conflict  by declaring that the suit by a pauper or a person claiming  to be  a pauper must be regarded as instituted on the  date  of the  presentation of the application for- permission to  sue in  forma pauperis as required by rules 2 and 3 of Order  33 Civil Procedure Code. As  regards  limitation  for such a  suit  instituted  by  a pauper.  the provisions of rule 8 of Order 33 are  relevant. That rule provides               "Where the application is granted, it shall be               numbered  and registered, and shall be  deemed               to  be  the plaint in the suit, and  the  suit               shall proceed in all other respects as a  suit               instituted in the ordinary manner, except that               the  plaintiff shall not be liable to pay  any               court-fee (other than fees payable for service               of  process)  in  respect  of  any   petition,               appointment of a pleader or other  proceeding               connected with the suit." In  view  of this provision there is no  dispute  that  when permission to sue as a pauper is granted by the court  under rule  7 of that Order, the petition or application  must  be regarded as a plaint filed on the day when, the  application was presented to the court. There is, however, divergence of opinion with regard to  the legal  position  arising out of an order passed  under  rule 7(3) refusing to 3 6 5 allow the applicant to sue as a pauper, One view is that  on

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such  a  refusal, the suit, which was  already  ’instituted. does  not come to an end, because, the application by  which the suit was commenced is a composite document comprising  a plaint and a prayer to sue in forma pauperis and, therefore, when  the  latter alone is refused, the suit does  not  come automatically to an end.  The proceedings can still continue if court fee is paid on the application treated as a plaint, in  which case the date for limitation would be the date  on which the application was presented to the court.  See,  for example,  Bhanu v. Dalmia and Co.(1) The other view is  that when  the  application to sue as a pauper is  refused,  that puts  an  end to the application, which is not  a  composite document,  and the court has no power thereafter  to  permit the  defunct  application  to  be revived  as  a  plaint  by accepting  court  fee.   See,  for  example  Chunna  Mal  v. Bhagwant  Kishore.(2).  How far this view can  be  sustained after  this Court’s decision in Vijay Pratap Singh  v.  Dukh Haran  Nath Singh, referred to above, is a matter  which  we are  not  called  upon  to decide  in  the  present  appeal. Nevertheless,  it  must  be noted that  there  is  almost  a concensus of opinion that where, before the formal  disposal of the application to sue as a pauper, the plaintiff  offers to pay the court fee treating the application as his plaint, or,  the court, agreeing to treat it as a  plaint,  enlarges the time for payment of the court fee, the application  must be  regarded  as  a plaint instituted on the  day  when  the application was presented.  See : Stuart Skinner v.  William Orde(3),   Devender  Kumar  Pharti,  v.   Mahanta   Raghuraj Bharti(4).   This  proceeds on the view that the  court  has power to permit the application to sue in forma pauperis  to be  treated as plaint and to extend the time, if  necessary, for  payment  of court fee on the document, in view  of  the fact that it contains all the necessary particulars for  the purpose of a plaint. In  the  appeal before us the plaintiff had offered  to  pay court  fee on the application regarded as a plaint  and  the court had agreed that this may be done.  There is nothing in Order  33 Civil Procedure Code which prevents  an  applicant from  telling  the  court  that though  he  had  prayed  for permission to sue in forma pauperis, he is now in possession of  funds  and  would  like to pay  the  Court  fee  on  the application treating it as a plaint.  Thereby, in effect the applicant  withdraws his prayer for permission to sue  as  a pauper and requests the court not to apply the provisions of Order  33  to him.  If the court agrees, and,  generally  in practice the court does agree, to treat the application  as a  plaint,  in  view of the fact that it  contains  all  the necessary  particulars required in a plaint, there could  be no objection to the suit being treated as one instituted by, the  presentation  of  a plaint.  In the  present  case,  as already  stated. even before, the issue regarding  pauperism came for trial and decision the plaintiff offered to pay the requisite fee on the application treating it as a plaint and the  court agreed to that course.  The plaintiff prayed  for three  months time to Pay the court fee by  her  application dated  February  26,  1949 and the  court  acceded  to  that request and adjourned the proceedings from time to time,  on several (1)  A.I.R. 1959 M. P. 169. (2)  A.I.R. 1936, Allahabad, 584. (3)  2 Allahabad, 241 (P.  C.) (4)  A. I.R. 1955 Allahabad, 154 (F.  B.) 366 occasions.   The plaintiff was finally granted time  to  pay the  court  fee until July 15, 1949  but  unfortunately  the

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plaintiff did not attend the court on that day, nor was  the court fee paid.  Hence the court passed the Order dated July 18,  1949 expressly saying that the application to sue as  a pauper is dismissed with costs. Now  the above Order dismissing the application to sue as  a pauper  was,  to say the least, otiose.  The  plaintiff  had already  withdrawn  his prayer for permission to  sue  as  a pauper  and the court had agreed to the withdrawal  of  that prayer and to treat his application as a plaint.  From  that time  onward  the suit which had  been  properly  instituted could only proceed on the basis that the suit was as good as a suit filed on a plaint.  And in such a case it was open to the court under section 149 C.P.C. to order the plaintiff to pay the deficit court fee and enlarge the period to pay such court  fee.   If the court fee is not paid, the  only  order that  the court could have passed was to reject the.  plaint under Order 7 rule 1 1 (c) C.P.C. The rejection of a  plaint is  a  decree  and  appealable  as.  such.   The   question, therefore,  is whether in this case there was any  rejection of  the  plaint for non-payment of the deficit  court  fee,. The  actual order passed by the court on July 18, 1949  does not show that the plaint had been rejected.  What the  court did  was to reject the plaintiff’s application to sue  as  a pauper which was a redundant order because the prayer to sue as  a  pauper  had  been  withdrawn  much  earlier  and  the application to sue as a pauper, as such, did not survive for being dismissed on July 18, 1949.  In law, therefore,  there was  no rejection of the plaint in the suit and,  therefore, the  suit  continued  to  remain  on  the  file.   While  it continued on the file the plaintiff applied to the court and paid  the court fee ,as ordered.  On the acceptance  of  the court  fee  by the court, the document, namely,  the  plaint would  by virtue of Section 149 C.P.C., have the same  force and  effect  as  if  such fee had been  paid  in  the  first instance viz. on the date it was presented to the court i.e. January  2, 1948.  In our view therefore, the suit  must  be regarded  as  properly filed on January 2,  1948;  and  that being admittedly the last date on which the suit could  have been legally filed to avoid the bar of limitation, the  plea of  limitation made on behalf of the defendants  must  fail. In the result the appeal fails and is dismissed with costs. S.B.W.                      Appeal dismissed. 367